United States Court of Appeals
For the First Circuit
________________
No. 04-2729
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES D. MCINNIS,
Defendant, Appellant.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
________________________
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.
____________________
Robert C. Andrews for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for the United States.
November 4, 2005
*
Of the Northern District of California, sitting by
designation.
Schwarzer, Senior District Judge. James D. McInnis
appeals from a judgment revoking supervised release and imposing a
sentence of twenty-four months’ imprisonment. He contends that the
sentence, imposed after the court found violations of numerous
release conditions, was unreasonable and that the district court
erred in rejecting his claim of immunity based on an alleged
promise from a Deputy United States Marshal who arrested him. For
the reasons stated below, we affirm the judgment and sentence.
FACTUAL AND PROCEDURAL HISTORY
On January 29, 2002, McInnis pled guilty to offenses
related to the distribution of cocaine base.
21 U.S.C. § 841 (2000). Based on his plea, McInnis faced a
possible sentence of up to twenty years. § 841(b)(1)(C). However,
in response to the government’s departure motion, the court
sentenced McInnis to twelve months in prison to be followed by
three years of supervised release.
McInnis initially complied with the conditions of his
release. In early 2004, however, McInnis committed a string of
violations that resulted in revocation of his release. In
March 2004, McInnis changed residences without providing ten days’
advance notice to his probation officer. On July 26, 2004, McInnis
failed to report to the Probation Office as instructed. When he
reported one day late, McInnis tested positive for cocaine. After
initially denying cocaine use, McInnis admitted to using cocaine on
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three occasions in the preceding two weeks. On August 19,
McInnis’s probation officer instructed him to report for six months
of community confinement. McInnis reported as instructed but left
later that day and failed to return; he had not commenced his
program at the time of his arrest.
On September 16, deputy marshals arrested McInnis. The
deputies had reason to believe McInnis possessed a significant
quantity of marijuana and questioned him and others at the site of
his arrest as to its location. McInnis eventually directed
officials to the location of over one pound of marijuana hidden in
his residence. Upon questioning by an agent, McInnis confirmed
that the marijuana was his and stated that it was for personal use.
The agent found the approximate weight of the drugs and packaging
to be one pound four ounces.
On September 17, McInnis’s probation officer filed an
amended revocation petition alleging five violations of his
supervised release: (1) failure to answer inquiries by his
probation officer truthfully and follow the instructions of the
probation officer to submit to drug tests and community
confinement; (2) failure to report a new address prior to changing
residences; (3) possession of cocaine and marijuana; (4) commission
of a federal crime by possessing cocaine and a state crime by
possessing and presumptively trafficking more than one pound of
marijuana; and (5) failure to fulfill his community confinement
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term.
McInnis admitted all of these violations except the
fourth. Specifically, he contested the state drug trafficking
charge on two grounds. First, McInnis argued that there was
insufficient evidence that he engaged in drug trafficking, which
would make his a Grade A violation of his supervised release.
U.S. SENTENCING GUIDELINE MANUAL § 7B1.1(a)(1)(2004). Maine law permits
a presumption of drug trafficking when the defendant possesses over
one pound of marijuana. ME . REV . STAT . ANN . tit. 17-A, § 1103(3)(A)
(2004). McInnis claimed that law enforcement officials’ lack of
precision in measuring drug quantity made it impossible to find
possession of a pound of drugs beyond a reasonable doubt, the
evidentiary standard for a conviction under Maine Rule of
Evidence 303 (2004). Second, McInnis claimed that a deputy marshal
made a promise, which the deputy denied, that he would not be
prosecuted if he disclosed the location of any drugs in his
possession and that this promise barred the finding of trafficking.
If the drug trafficking violation failed on either ground, McInnis
contends, the court could not find his violation to have been
greater than Grade C, carrying a lower advisory guideline range.
U.S. SENTENCING GUIDELINES MANUAL § 7B1.4.
Following an evidentiary hearing, the district court
rejected the immunity claim, both because the court found the
deputy’s denial credible and because, in any event, the deputy
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lacked authority to make such a promise. The court further found
by a preponderance of evidence that McInnis possessed over one
pound of marijuana with intent to distribute and that this conduct
violated the conditions of supervised release as a Class C felony
under Maine State Law punishable by up to five years’ imprisonment.
ME. REV. STAT . ANN . tit. 17-A, § 1103(3)(A). Because of the five
year possible punishment under Maine law, under federal law the
Maine crime would amount to a Grade A violation of the terms of
supervised release. U.S. SENTENCING GUIDELINE MANUAL § 7B1.1 The court
therefore correctly concluded that the violation was a Grade A
violation and revoked supervised release.
At a subsequent sentencing hearing the court advised that
it had carefully considered the history and background of the case,
the papers on file, and what it had heard in the proceedings, as
well as the advisory Guideline range and the statutory maximum of
twenty-four months. The court concluded that an additional term of
supervised release was not appropriate and that McInnis’s
violations warranted a more severe sentence, and it imposed a
sentence of twenty-four months.
This appeal followed.
DISCUSSION
I. VALIDITY OF THE SENTENCE
Because McInnis does not challenge the revocation of his
supervised release, the only issue before us is the challenge to
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his sentence. We review revocation sentences for abuse of
discretion. United States v. Ramirez-Rivera, 241 F.3d 37, 40-41
(1st Cir. 2001).1 United States v. Booker, promulgating a
reasonableness standard for review of Guideline sentencing
decisions, is not relevant to the present case. See ___ U.S. ___,
____, 125 S. Ct. 738, 756-57 (2005). The procedure for revocation
of supervised release and imposition of a prison term is governed,
not by the sentencing guidelines, but by 18 U.S.C. § 3583(e).
United States v. Work, 409 F.3d 484, 490 (1st Cir. 2005). That
section cabins the term of incarceration permitted in consequence
of a supervised release violation with reference to the offense of
conviction. See 18 U.S.C. § 3583(e)(3); Work, 409 F.3d at 490.
McInnis makes no attempt to challenge his twenty-four
month sentence as an abuse of discretion. He contends that the
sentence was unreasonable, in essence making two points: (1) that
his case lacks the aggravating factors found in other cases and (2)
that “the sentence was meant to punish his Sixth Amendment right to
hearing.” The arguments are not persuasive. The district court,
after hearing argument from counsel and considering the history of
this case and the record of violations in this case, concluded that
McInnis would not benefit from an additional period of supervised
1
As this court pointed out in Ramirez-Rivera,
241 F.3d at 40 n.4, the courts of appeals have not characterized
the scope of review in an entirely consistent fashion, though all
agree upon a deferential standard of appellate review.
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release. Rather, McInnis’s recent drug-related activity suggested
that his continued freedom posed a threat to the community. And
nothing in the record supports the contention, raised for the first
time on appeal, that the sentence was punitive. In sum, applying
the appropriate standard of review, we find no abuse of discretion.
McInnis advances a series of arguments in an effort to
show that the district court’s finding of a Grade A violation was
in error. While the nature of the crime upon which one count of
revocation is based may have some relevance to whether a revocation
sentence is an abuse of discretion, the validity of the sentence
does not turn on it, particularly on the facts here. See United
States v. Tapia-Escalera, 356 F.3d 181, 185 n.3 (1st Cir. 2004)
(distinguishing grades of supervised-release violations from the
felony classification scheme for sentencing purposes under
§ 3559(a)). Section 3583(e) authorizes the revocation of
supervised release and imposition of sentence upon consideration of
the relevant factors in § 3553. Pursuant to § 3553(a)(4)(B), the
court need only consider, not implement, the advisory sentence
range provided in the guidelines’ policy statements.2 See Work,
409 F.3d at 489; United States v. O’Neil, 11 F.3d 292, 301 n.11
(1st Cir. 1993). The statutory maximum, based on the original
offense rather than the grade of release violation, ultimately
2
McInnis concedes on brief that the court considered the
policy statements.
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limits the court’s sentencing discretion.
See 18 U.S.C. § 3583(e)(3). McInnis pled guilty to distribution of
cocaine base and aiding and abetting that crime, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2, a Class C
felony. 18 U.S.C. § 3559(a)(3) (explaining Grade C sentence
classification). Section 3583(e)(3) authorizes a sentence of two
years when the offense was a Class C felony, and that was the
sentence the court imposed.
II. CONSTITUTIONAL CONTENTIONS
McInnis raises (for the first time on appeal) three
constitutional arguments challenging his sentence. Plain error
review applies. United States v. D’Amario, III, 412 F.3d 253, 256
(1st Cir. 2005). These arguments are readily disposed of.
McInnis argues that the district court imposed a more
severe revocation sentence as punishment for the exercise of his
Sixth Amendment right to a hearing regarding his release
violations. While the district court questioned McInnis’s motives
in challenging his fourth, and most severe, violation, there is, as
noted above, no evidence to suggest that the hearing was a factor
in the court’s sentencing. The court gave a number of reasons
sufficient to justify McInnis’s revocation sentence. There was no
Sixth Amendment error.
McInnis further contends that the court’s revocation of
his release is a sentence enhancement based upon an unproven
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criminal record, raising Sixth Amendment concerns. He argues that
this circuit should abandon its treatment of recidivist
enhancements based upon what he labels the “doomed” status of
Almendarez-Torres v. United States, 523 U.S. 224 (1998). This
court, however, continues to be bound by Almendarez-Torres. See
Work, 409 F.3d at 491 n.1; United States v. Gomez-Estrada,
273 F.3d 400, 401 (1st Cir. 2001) (“we deem ourselves bound to
follow the holding in Almendarez-Torres unless and until the
Supreme Court abrogates that decision”); United States v. Terry,
240 F.3d 65, 73-74 (1st Cir. 2001) (“until Almendarez-Torres is
overruled, we are bound by it”). As McInnis concedes in his brief,
his argument fails as long as Almendarez-Torres remains a viable
precedent.
Finally, McInnis claims that his post-revocation sentence
raises double jeopardy concerns under the Fifth Amendment either
for the original offense or the subsequent violation. His
arguments are without merit. First, § 3583(e) directs courts
considering revocation sanctions to consider the class of offense
responsible for the original sentence. See Tapia-Escalera, 356
F.3d at 185. Although the punishment imposed in response to the
release violations is in addition to prior punishment, it is
treated as part of the penalty for the initial offense, thus
obviating double jeopardy concerns. Johnson v. United States,
529 U.S. 694, 699-700 (2000). In addition, McInnis argues that his
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revocation sentence punishes him twice for his cocaine use for
which he was referred to community confinement. His revocation
sentence, however, was based, among other things, on his later
possession of marijuana.
III. IMMUNITY PROMISE
Finally, McInnis challenges his revocation sentence on
the strength of his claim that a deputy marshal promised him that,
for disclosing the location of the marijuana, he would not be
prosecuted. The district court was entitled to disbelieve
testimony given by McInnis’s girlfriend and other friends of
McInnis which was squarely contradicted by the deputy’s testimony.
See United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996)
(stressing the difficulty of upsetting on appeal credibility
determinations by a fact-finder). But even if the deputy had made
such a promise, it would lack legal significance for lack of
authority to offer such immunity. See United States v. Flemmi,
225 F.3d 78, 86-87 (1st Cir. 2000) (requiring a specific source of
authority for granting immunity). The Marshal Service is an
investigatory arm of the Department of Justice, not a prosecutorial
agency. It lacks authority deriving from its investigatory role,
even when operating in conjunction with probation officers, to make
promises to suspects binding on the United States Attorney. As
this court explained in Flemmi, “the power to investigate does not
necessarily encompass (or even reasonably imply) the power to grant
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use immunity.” 225 F.3d at 87. McInnis has failed to identify a
source of authority for the deputy to make a promise of immunity.
CONCLUSION
For the reasons stated, we affirm the judgment and
sentence of the district court.
Affirmed.
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